### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 25, 2001 STATE OF TENNESSEE v. DWAYNE SIMMONS Direct Appeal from the Circuit Court for Maury County

No. 11070 Robert L. Jones, Judge

No. M2000-01199-CCA-R3-CD - Filed May 11, 2001

The defendant, indicted for the false reporting of a bomb threat at an elementary school, was convictedof the offense

of harassment, and fined

$1000. No motion for a new trial was filed. In a pro se appeal to this cour t, the defendant r

aises essentially

four issues: (1) w

hether he was den ied effectiveassistance of counsel; (2) whether he was denied the right to testify at trial; (3) whether the Statewithheld exc ulp ato ry evidence; and ( 4) whether the e

vidence was suff

icient to support his conviction of harassment. After a careful review of the re cor d and applicable law, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. Dwayne Simmons, Columbia, Tennessee, Pro Se (on appeal) and Dana C. McLendon, III

, Franklin, Tennessee (at tr

ial) for the appe

llant, Dway

ne Simmons. Paul G. Summers, Attorney General and Rep

orter; Elizabeth T . Ryan, Assist ant Attorney

General; T. Michael Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Dwayne Simmons, who was forty years old at the time of

trial, was convicted in the Maury County Circuit Court of one count of ha rassme nt, a Class A misdemeanor, for threatening to plant a bomb at a M aury County

elementary

school. In his pro se appeal to this cour t, he appears to ra

ise essentially

the following fo

ur issues:
I. Whether

he was denied

effective assistance of counsel by trial counsel’s failur

e to present any

evidence at tria

l;1 Although the indict ment alleged

that the defendan t had violated § 39-16 -502(a)(2 ), it then set out the ele ments of § 39-16-502(a)(3). Since trial proceeded with the apparent unders tand ing of the parties and the tr ial court that the defendant had been charged w ith violating the latter se ction, this error is harmless. See State v. Bowers , 673 S.W.2d 887, 888 (Tenn. C rim. App. 1 984) (co ncluding that “e rroneous recitation of a sta tute is mere surplusage and not fatal to the charging instrument” and fai lure to timely object to such a defect results in waiver). -2- II. Whether

he was denied the right to testify in his own behalf;
III. Whether the State withheld exculpatory evidence; and
IV. Whether

the evidence wa

s sufficient to supp

ort his conviction. Based upon a thorough review of the record and of applicable law, we affirm the judgment of the trial court. FACTS
On May 21, 1999, the Mau ry County

Grand Jury returned an indictment against the defendant,

charging him with the

false reporting of a bomb threat at Riverside Elementary School in Columbia, in violation of Tennessee Code Annotated Section 39-16-502(a)(2). 1 Trial was held on March 16, 2000, before a jury in the Circuit Court of Maur y Coun ty. At trial and at the sentencing hearing which followed on April 24, 2000, the defendant was represent ed byretained counsel.
Th e State’s first witn ess was Kellie Shr ake, a dispatche

r for the Columbia Po

lice Department

. Shrake testified that on the morning of March 12, 1999, she received a phone call from a man who identified himself as the defendant. On the tape of the call, which was played before the jury , the defendant can be heard as

king to speak to Se

rgeant Ehret o

f the Columbia Police Department. Shrake asks what the call is in reference to, and the defendant tells her that Ehret at some time in the past talked him out of bombing the Maury Regional Hospital, that he now plans to do something even more stupid, and that he wants to talk to Ehret before he acts. Shrake acknowledged on cross-examination that the defendant called the seven-digit phone number o f th e Columbia Police Department rather than 911, provided his full name and phone number, referred to Sergeant Ehret as a friend, and was polite throughout the call. She admitted that he had said that he intended to wait twenty-four hours before taking action, and that he had not mentioned specifically what it was that he planned to do. Sergeant Thomas Ehret testified that he had known the defendant, whom h e described as a “friendly,”

“intelligent person,” for ten or eleven years. They had met at a local mall, where Sergeant Ehret had worked

during his off-duty hours as a security guard, and the defendant had played arc ade games. During the course of the ir conversations, the defendant revealed that he, like Ehret, was an Army veteran. The defendant told him that he had been a combat engineer in the military, and that-3-

he had been selected from the ranks of enlisted men to attend the United States Military Ac ademy at West Point. He h ad later gotten in some kind of trouble and left the Army. Ehret knew the defendant’s claims to b e true, the d efendant on ce having s hown him hi s “DD 214,” or official military record. As an Army enlisted man,Ehret said, the defendant would have undergone bas

ic training in the use of various firearms and explosive devices. After receiving a page and phone call from Shrake at approximately 10:20 a.m. on March 12, 1999, informing h

im of the defenda

nt’s phone call to

the 911 center, Ehret called the defendant at home. “Talking rapidly” and “somewhat erratic[ally ],” the angry defendant told him that a teacher at Riverside Element

ary School h

ad refused to all

ow his son to go to the

bathroom, causing

the child to soil himself. According to the defendant, it had happened once before. The defendant mentioned having talked to the principal, referring to h imas “a neolithic racist,” said that he was “sick and tired of it,” and was goin

g to take matter

s into his own hands. Asked what he mea nt, the defendan

t said that he would make

a bomb and blow up th

e school, and that

he did not “give a f--

k” who he hurt. The defendant told Ehret that hewas going to go “get some stuff.” When Ehret asked, “To make a device?” referring to a

bomb, the defendant answered, “Yes.” The defendant hung up as Ehret was attempting to reason with him, urging him to stop and consider the consequences. Based on his knowledge of the defendant’s personality and milit ary background, Ehret believedthat the defendant was capable of c arrying ou t his threat. Ehret took immediate action, contacting his superior to ask that the school be alerted to the threat, and calling the districtattorney general’s office for assistance in drawing up a warrant for the defendant’ s arrest. He then drove to the school, where he met with the pr i ncipal. When he arrived at the school, he found that the principal was aw

are that some sor

t of threat had be

en made agains

t the school, but unaware that it had been a bomb threa

t. Ehret testified

that after the pr

incipal’s consul tation with a school board member, the decision was made to evacuate the school, and school resource officers and other law enforcement personnel were brought in to search for a bomb. No bomb devices wer e found. Ehret admitted on cross-examination that he had helped the defendant in the past, and that the defendant probably considered him as someone in whom he could confide his problems. He also admitted that he may have be en mistaken in rep

orting that Shrak

e had told him, when informing

him of the defendant’s phone call to the 911 center, that the defendant had threatened to bomb Riverside Elementary

School. His best re

collection, howe

ver, was that Shra

ke had told him

that the defendant had threatened

the school. Ehret testified that the defendant had not been seen that day at the school, and had offered no resistance when they arrested him at his home later that evening. He had never known the defendant to commit

a violent act. However, he had known of his threatening violence in the past, when he threatened

to blow up the Maury Regional Hospital. A number of law enforcement officials had responded

to that incident, and he had become involved because of his personal knowledge of the defendant.-4-

Charle s Kennet

h Wiles, principal of

the Riverside Elem

entary Sch

ool, testified that

the bomb threat, which made him apprehensive for the safety of students and s t aff, disrupted the school’s normal routine. The school was first placed in “lockdown m ode,” in which the children were confinedto their classrooms, whi le office rs searched the building and grounds for a bomb. The children were eventuall

y dismissed slightly early, under closer than nor mal supervision and c

ontrol. On cross-exa mination , Wiles adm itted that he learned of the bomb th reat through S ergeant Ehre t, and that the defendant had never threatened him or the school in any conversations that Wiles had had with him. Following the trial court’s denial of his motion for judgme nt of acquittal, the defendant rested his case without pre

senting any

proof. After de

liberations,

the jury fou

nd him guilty of ha

rassment, and fined him $1000. On April 24, 2000, the trial court sentenced the defendant to eleven months and twenty-nine days in the county jail at 75%. On May 3, 2000, the court am ended the judgme

nt, ordering that the defenda nt serve thir

ty continuo us days in jail, and be placed on supervised probation for the remainder of the sentence. On May 17, 2000, the defendant filed a pro se notice of appeal to this court. No motion for a new trial was filed. By order dated July 26, 2000, defense counsel’s June 30, 2000, motion to withdraw his representation, due to the defendant’s failure to pay for his services, was granted. ANALYSIS I. Ineffective Representation of Counsel The defendant conte

nds that histrial counsel provided ineffective representation by failing to offer any proof in his behal f at tr ial. Specifically, he asserts that trial counsel was deficient for failing to offer evidenc

e that would have r

esulted in his acqu

it tal. The State argues that the defendant waive

d this issue by

his failure to rai

se it in a timely

motion for a new tr

ial. No motion for a new trial was filed in this case. The failure to file a motion for a

new trial within thirty day

s from the date tha

t the order of sen

tence is ente red results in the waiver of any issues that should have been presented in the motion for a new trial. See Tenn. R. App. P. 3(e); State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997). Tennessee Rule o f Appellate Proc

edure 3(e) stat

es, in pertinent part:

Provided, however, that

in all cases tried by a jury, no issue presented for review shall be predicated upon error in t he admission or exclusion of evidence, jury instructions granted or refused, misconduct

of jurors, parties or

counsel, or other action committed or occurring during the trial of the case, or other groun d upo n which a new tr ial is sought, unless the same was specifically stated in a motion for a new trial ; o therwise such issues will be treated as waived.2 There is no evidence th at the defend ant ever ap peared b efore the gra nd jury. -5- Thus, the defendant waived this issue on appeal by his failure to rai

se it in a timely motion for a new trial. Regardless

of the waiver, th

e reco rd does not support the defendant’s claim of ineffective assistance of counsel based on trial counsel’s failure to present evidence at trial

. To make out a successful ineffective assistance of counsel claim, the defendant bears the burden of proving both that his counsel was deficient in his representation, and that the deficiency pre judiced the outcome of his case. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984 ). A showing of deficient performance requires proof that “the advice given

or the service rendered was not within the range of competence demanded of attorneys in criminal ca se s[.]” Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). We indulge in a strong presumption that the conduct of counsel falls

within the range of reasonable professional assistance, see Strickland , 466 U.S. at 690, 104 S. Ct. at 2066, and ma

y not second-gues s the ta ctical and strategic choices made by tr

ial counsel unless

those choices were uninforme d because of ina

dequate prep aration. S ee Hellard v. State, 629 S.W.2d 4, 9 (Te nn. 1982). The pre

judice prong of the

test requires proof that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedin

g would have been

different. A re

asonable probab

ilit y i s a probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. The defendant’s insufficient showing on either p rong of the test re

sults in the failure

of his ineffective assistance claim. Id. at 697, 104 S. Ct. at 20 69; see also Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996) (sta

ting that “failure

to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”). Here, the defendant bases his i neffective assistance of counsel claim on trial counsel’s failure to present any proof at trial. As “proof” of the deficiency of counsel’s performanc e, the defendant refers this court to trial coun sel’s d iscovery request to the State, seeking any “recorded testimony of the defendant before a grand jury,” 2 and any “books, papers, d ocuments, photogr

aphs, . . . which are within the possession, custody or control of the State, and which are material to the preparation of the defendant’s defense[.]” From this discovery request, the defendant apparent ly leaps to the conclusion that trial counsel received evidence from the State that was material to his defense, and yet failed to present

it at trial. Nothing in the record supports this conclusion. The defendant offers no other proof in support of his claim, other than the fact that he was convicted aft er trial counsel had rested his case without presenting any evidence in his behalf. The fact that a strategy or tac

tic failedor hurt the defen

se, however, doe

s not alone support t

he claim o f ineffective assistance of counsel. See Thompson v. State , 958 S.W.2d 156, 165 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1997). Since the defend ant has failed to s

how that counsel’ s performance w as deficient,

his claim of ineffec

tive assistance mu

st fail. This issue, t

herefore, is wit

hout merit.3 The defendant’s brief is somewha t confusing, ma king it difficult to discern exactly what iss ues he is attempting to raise. -6- II. Denial of Right to Testify The defendan t contends that he was denied his right to testify in his own behalf. Withou t specifically

addressing this issue, 3 the State argues that the defendant has waived all issues other than the sufficiency of the evidence by his failure to raise them in a timely motion for a new trial.
Even though the defend

ant failed to rais

e this issue in a motion for a new trial, this court may, within its discretion, take notice at any time of an error which affects a substantial right of the accused where it may be necessary to do substantial justice. Tenn. R. Crim. P. 52(b). In Momon v. State , 18 S.W.3d 152 (Tenn. 1999), our supreme court held that the right of a defendant to testify in his own behalf

is a fundamental constitutional right, which may only be personally

waived by the defendant. Id. at 161. To ensure t hat the rig

ht to testif

y has been personally waive d by the defendant,

the Momon court directed trial courts in all future cases to follow procedural guidelines which call for defense counsel to request a jury-out hearing in the presence of

the trial court to demonstrate

tha t th e def end ant ’s w aiv er of the righ t to tes tif y has been kno win gly, int ell igen tly, and voluntarily

made. Id. at

163. At this hearing, which “shall be placed on the record,” defense counsel must at a minimum show “that the defendant knows and understands”:

(1) the defendant has the right not to testify, and if the defendant does nottes tif y, then the jury (or court) may not dra w any inferences

from the defe nda nt’ s fa ilu re t o te sti fy; (2) the defendant has the right to testify and that if the defendant wishes to exercise that

right, no one can prevent the defendant from testifying ; (3) the defendant has consulted with his or her counsel in making the decision whether or

not to testify; that the defendant has been advised of the advantage

s and dis advantag es of testifying; and that the defe nda nt h as v olu nta ril y and pers ona lly w aiv ed t he ri ght t o te sti fy. Id. at 162. The mere failure of a trial cour t to follow th ese guidelines, however, is not en

ough to support the defendant’s claim that he was deprived

of his constitutiona

l right to testify

“if there is evidence in the record to establish that the right was otherwise personally waived by the defendant.” Id. at 163. Although the trial in this ca se took place app

roximately

four months after the release of the Momon opinion, there is no evidence that the

procedural guidelines established by the Momon court were followed. Nor is there any other evidence included in the record to show that the defendant personally

waivedhis right to testify. The record reflects only two instances in which mention was-7-

made of the defendant’s testifying, neither of which shows that the defenda nt personally

waived his right to testify. The first instance occurred prior to trial. As tr

ial counsel was a

rguing motions in

limine, he a sked that the judge as sume, for the purp oses of the motions,

that the defenda

nt would not b e testifying. The defenda

nt rais ed his hand, say

ing “Please, Yo

ur Honor. I ha

ve no problem in testifying.”Trial counsel merely said, “We’ll get to that,” and continued his arguments. The second instance occurred after

the trial court’s denial of the defendan t’s motion for judg

ment of acquittal, when the following exchange between the trial court and trial counsel took place:

THE COURT: Now, what evidence do you anticipate? [TRIAL COUNSEL]: None, Your Honor. THE COURT: You are not going to put the defendant on? [TRIAL COUNSEL]: No, Your Honor. THE COURT: Okay. So you’ll need an instruction on that. The record

is silent regarding any private conversations trial counse l may have had with the defendant. In the absence of evidence to show that the defendant pe rso nal ly waived his right to tes tif y, we must presume tha t he did not. See id. at 162 (“The waiver of a fundamental right will not be presumed from a silent record, and the courts sho uld indul ge every reasonable presumption against the waiver of a fundamental right.”) ( citations omitted). The denial of the right to testify, however, is subject to the harmless error doctrine

. I d. at 166. As the Momon court stated:

[C]ourts should consider the following factors when de t ermining whether the deni al of the right to testify is harmless beyond a reasonable

doubt: (1) the importance of the defendant’s testimony to the defense case; (2) the cumulative nature of the testimony; (3) the presenceor absence of evidence cor roboratin g or c ontradicting the defendant on material points; (4) the overall stre ngth of the prosecution’s ca

se. As previously

stated, the goal of

harmless error a nal ysisis to identify

the actual basis o

n which the jury

rested its ve rdict. Accordingly, the factors identified herein are mere l y instructive and no

t exclusive conside

rations. Id. at 168 (citation and footnote omitted).-8-

After a thorough review of the record, we conclude that the denial of the defendant’s right to testify in this case constituted harmless error. Some indication of what the defendant’s testimony at trial would have been m ay be gleaned from his testimony at the sentencing hearing , where he complained that he had not been allowed to tell his “side of the story.” According to

the defendant, he had told

Sergeant Ehret that he

was “going to get some stuff,” but had not said that it was for a bomb. The defendant’s testimony, thus, would have contradicted Sergea nt Ehret’s account of

the conversation. The defendant further

testified at sentencing that he suffered from bipolar disorder, and was currently unemployed and receiving disability. Claiming an I.Q. of 195, he said that he had been one of the first African-Americans appointed to West Point. He had been forced to leave just short of graduation

because of his failure to maintain a 2.0 grade point average, which he blamed on the stres s of being one of t

he first Africa

n-Americans at t

he school, his alco

holism, and his b

ipola r disorder. He had ceased taking the medication prescribed for his mental disorder some time prior to the instantoffense, opting instead to “self-medicate” with cocaine and marijuana. He had last seen a psychiatrist in 1998, and a psy chologist in January of 1999, but was not currently taking any prescription medication. When a sked if he felt

remorse for the situation that occurred at the school on March 12, 1999, the defendant answered that he did, in that the teachers and administration had notproperly

handled his complaints about the treatment of his children, and it hurt him as a parent “that [he] would have to go through all this to get this problem resolved.”
In light of the defendant’s obvious mentalproblems, it is unlike ly that his tes

tifying wo

uld have helped his c

ase. Sergeant

Ehret’s testimony

that the defenda

nt told him that he wa

s going to get “stuff” to make a

bomb directly

contradicts the de fendant’s version of their conversation, that while he hadtold Sergeant

Ehret that he was going to “get some stuff,” he had answered “N o,” rather than “Yes,” when Sergeant Ehret asked if he meant “stuff” t o make a dev ice. Sergeant Ehret’s account, moreover, was corroborated by the tape of the defendant’s conversation with Kellie Shrake, in which he clearly mentions having planned to do something stupid in the past when he threatened to bomb the hospital, and that he now intends to do something more drastic. Overa ll, the State’s cas

e against the defendant was very

stron g. In sum, we conclude that the denial of the defendant’s right to testify was harmless beyond a rea sonable doubt. III. Alleged Brady Violation
Th e defendant contends that the State deprived him of due process of law by its failur e t o provide him with exculpa t ory evidence, without mentioning what exculpatory evidence he was denied. Under Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. E d. 2d 215 (1963), th

e State had a duty to furnish the defendant with any exculpatory evidence in its possession. Our review of the record revea

ls no evidence that

the State failed to

furnish exculpatory evidence to the defendant or his counsel. The defendant’s bare alle gation that he was denied exculpatory material, unsupported by any facts, is insufficient to show a Brady violation. This issue, therefore, is without merit.-9- IV. Sufficiency of the Evidence
Fin all y, the defendant contends that the evidence was insufficient to support his conviction of harassment. He a

rgues that the Sta

te failed to prove

intent, a necessa

ry element

to harassment, and failed to o ffer any corrobor ating evidence in support of Sergeant Ehret’s testimony that the defendant threatened to bom

b the school. The de

fendant contend

s that the testi

mo ny of Sergeant Ehret, the only State wi tness able to testify that the defendant actually made a threat to bomb the school, was not credible. As support, he point s out that the tape-

recording of h

is phone call to the Columb ia Police Departme nt shows that he nev

er mentioned bombi

ng Riverside Ele

mentary Sch

ool, butthat Sergeant Ehret reported having first learned of the defendant’ s threat against the school from Kellie Shrake.
Our sta nda rd o f rev iew whe n th e su ffi cie ncy o f the evidence is challenged on a

ppeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved a ll conflicts in the testimonyand drawnall reasonable inferences from the evidence in favor of the State. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). All questions involving

the credibility

of witnesses, the w

eight and value

to be given

the evidence, an d all factual issues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 62 3 (Tenn. Cri m. App. 198 7) . “A guilty verdict by the jury , approved by the trial judge, accredits the testimonyof the witnesses for the State and resolves all conflicts in favor of the theory of the State.” Statev. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant’s conviction stemmed from his violation of the following statute:

(a) A pe rso n co mmi ts a n of fens e wh o in ten tio nal ly: (1) Threatens,

by telephon

e or in writing, to take action known to be unlawful again

st any perso

n, and by this

action knowingly annoys or alarms the recipient[.]
Tenn. Code Ann. § 39-17-308(a)(1) (1997). A person acts intentionally when it is his or he r “conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39- 11-302(a) (1997). A personacts “knowingly with respect to a result of the person’s conduct when the person is aware that

the conduct is reasonably certain to cause the result.” Tenn. Code Ann.§ 39- 11-302(b) (1997). Viewed in the light most favorable to the State, the evidence established that the defendant was guilty of ha

rassment bey

ond a reasonable

doubt. The defendant telephoned the Columbia Police-10-

Department

on the morning of March 12, 1999, asking to speak to Sergeant Ehret. The tape of his phone call reveals that, while n ot directl y threaten ing Riverside Ele

mentary Sch

ool, he told dispatcher

Kellie Shrake tha

t Ehret had earli

er talked him

out of bombing the Maury Regional Hospital, that he now plans something more drastic, that he wants to speak to Ehret before he acts, and that if he does not hear from him within twenty-four hours he intends to implement his plans. Sergeant Ehret testified that when he called, the “agitated” defendant told him that he was going to blow up Riverside Elementary School, that he was going to “get some stuff,” indicating that it was “stuff” to make a bomb, and hung up the phone. From Ser gean t Eh ret ’s t est imo ny, it was clear that the defendant knew that Sergeant Ehret, a police officer who was familiar wi th the defendant’s military background

and mental conditi

on, and who had be

en involved in

the police response to the defendant’s previous bomb threat, would take seriously the defendant’s thr e at against the elementary school. Thus, based on the evidence, the defendant’s conviction for harassment was proper. CONCLUSION
Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE